The Newsom–Elder Alliance (and a Lawsuit for Eleni?)

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They both got the match they wanted, but only one is getting the race he wanted.

By not allowing even one qualified Democrat onto the replacement ballot — lest people be too tempted to replace his lovable self — Gavin Newsom has gambled the future of the state (and even the country, given that a Larry Elder-appointed Senate replacement for 88-year-old Dianne Feinstein would put the Senate into Mitch McConnell’s hands. Even if he wins, he should be expelled from politics over that recklessness alone.

But this recall is not the way to do it.

Democratic leaders are dutifully relaying Newsom’s message that  their voters should vote solely on the recall question, skip the replacement question, then turn in their ballot immediately. People who don’t limit themselves to party elite circles seem confused by this — and “confused” equals “less likely to vote.”

Republicans aren’t confused at all: they’ll vote for Larry Elder (or maybe Kevin Faulconer, if the other anti-Elder candidates throw their support to him.) So, Elder will win the recall with maybe 25% of the pro-recall vote — already likely to be small — and majority rule loses again.

How did we get here?

(We’ll also explore what (if anything) we can still do about it in a separate post.)

1. An Unlikely Alliance

Gavin Newsom and Larry Elder have each had a strategy that hinged on a one-on-one face-off vs. the other. Elder’s is simple and logical: he had to break away from the pack of Republican replacement candidates so that he could get enough votes that no non-Republican candidate could beat him. The other candidates would have done their job by generating excitement about the race and bringing Republicans out to the polls; then he gets the benefit.

Newsom’s strategy was to engineer a situation where the alternative to his remaining in office was something so horrific — losing the Governor’s seat, Democrats losing the U.S. Senate, the Biden Presidency being cut off at the knees, cats and dogs living together, and the world ending in either solar or nuclear fire — that Democrats would have no choice but to turn out to vote for the recall.  (The legal term for this is “extortion”; it’s generally allowed within politics, but voters outside of the political circle tend to dislike it.) As Newsom is finding out, it doesn’t work.

Elder will immediately balloon his nationwide following if he wins. He’ll issue Executive Orders like beads at Mardi Gras, stamping out social services and health and safety regulations. (God knows what he’ll do about Covid-19 safety.) Elder is the perfect foil for Newsom.  And Newsom — easily depicted as vain, egotistical, narcissistic, contemptuous, cosseted, elitist, vengeful, and perhaps a little dim — was the perfect opponent for Elder.

The party’s interest (and I’d say the electorate’s interest, not likely to be reflected in the diminished turnout of a recall) is not to have a Republican Governor. (That’s not because Republican governors are objective and inherently bad; it’s because, given the option, general election voters seem consistently to prefer Democrats.)  Newsom’s interest, in contrast, has been to ensure that the only non-Republican who would serve as Governor was himself.

It may not jump out at you, but there’s a real difference in interests here — although the institutional Democratic Party, supposedly responsive to the people, is siding with Newsom over the electorate.

A lesser (but better) person than Newsom would have put the electorte’s interest in not having a Republican Governor ahead of his own interest in being the only possible Governor. A lesser (but better) person would not chain their leg to that of his party’s voters, so that if they fell off a cliff then the party would as well.

But a better, even if lesser, person might not have needed to do so. A better person would not have recklessly gambled the party’s (state’s, nation’s) future for his own benefit — that gamble being preventing one or two compelling Democrats from running. Not being the type to engage in voter extortion, that lesser person might have been dealing with a less disgruntled electorate (which, of course, includes left-leaning NPPs, who won’t come out for Newsom and will laugh if he crashes his party into the ground.)

Gavin Newsom didn’t start this mess — but he sure made it worse. As Karl Marx might have written “History repeats itself: first as electing Schwarzenegger in a recall and then as electing Elder.” Arnold, a well-loved celebrity (then  believed to be a moderate) in his recall campaign, was a tragedy for Gray Davis; Elder is a farce, but has had the luck to face an opponent who believed that with a carrot of charm and a stick of dynamite he could use his party apparatus to reach the voters from whom they were so estranged.

(Speaking of Gray Davis: he did not lose his recall because Cruz Bustamante was on the ballot siphoning away his support; he lost first because he had pissed off the public and second because he had an opponent in Schwarzenegger with whom the public was comfortable.)

Maybe Newsom will narrowly pull this one out, but that won’t necessarily save him: even a 1% win probably ruins his future political ambitions.  (A loss, I would think, extinguishes them.) What he needs to win is what he has pretended to do before: go into seclusion and emerge a changed man. But we’ll get to that in the next post.

2. Is It Too Late for a Lawsuit?

In the meantime, I want to address one theory making the rounds right now that replacement portion of the recall election is literally illegal. My sense is that it’s correct — but fruitless at the moment. Sadly, I saw this on my phone yesterday in an article I can no longer find, and saw it discussed only in a private website, so I don’t know who to credit.)

Without question, the Governor can be recalled. The question is whether the people can then vote on a replacement in the same election. This procedure is (as we in OC well know) how the usual recall system works, but it may be that the Governor’s office is different: the Governor’s replacement was chosen in 2018!

Let’s look at Article ii. Section 15, of the California Constitution:

SEC. 15.

(a) An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.

What does that “if appropriate” mean? Note that it has to mean something; in reading a constitution, we reject the notion that any of its language is “surplusage” (inert and unnecessary.)

It seemed compelling to the author of the article, and very plausible to me, that it means something along the lines of “if not otherwise provided for.” At a minimum, to change my mind someone would have to show me one or more good examples of times when it would be appropriate to recall an officeholder but not appropriate to replace them. I can’t think of one.

Judges and legislators do not have automatic replacements if they are recalled, so replacement elections are “appropriate.” Neither do other state Executive Officers, who are appointed by the Governor; such an appointment is not an automatic process, so it makes sense that it would be appropriate to preempt it with a replacement election.

Only one office has an automatic replacement: that of the Governor, whose vacancy in office is filled with the Lieutenant Governor. It stands to reason that this is the “not appropriate” situation to which Section 15 refers. (Why not specify it by name, then? Probably because a future electorate might decide, for example, to have a “Lieutenant Attorney General” or something, to which this same rule would then apply.)

There’s some additional statutory evidence for this interpretation in the Election Code Section 11302(b)(4):

CHAPTER 4 – General Procedures: Final Steps in the Recall

ARTICLE 1 – General Provisions
Section 11302.

(4) A person who was subject to a recall petition may not be appointed to fill the vacancy in the office that he or she vacated and that person may not be appointed to fill any other vacancy in office on the same governing board for the duration of the term of office of the seat that he or she vacated.

(Amended by Stats. 2014, Ch. 591, Sec. 3. (AB 1311) Effective January 1, 2015.)

“On the same Governing Board.” Almost everyone in the state who can be recalled serves on a “Board” of some sort — including, I’d think, Supreme Court Justices, Appellate Court Judges, and District Court Judges, as well as Legislators, Mayors, and Council members.

The Governor, though, does not serve on a “Board.” The regular recall rules already do not apply.

So does that mean that someone can void the replacement part of this election, if Newsom loses the recall, by having it declared null and void? My first thought was “no,” because likely plaintiffs (such as the state Democratic party) would not be allowed to “sit on the sidelines” and wait for a “second bite at the apple.”

However, now I think that the answer might be “yes.” Arguably, Lt. Governor Kounalakis would have the right to sue over the replacement law, because until and unless Newsom is recalled the time will not have been “ripe” for her to sue. She will have become Governor — not merely “Acting Governor,” as I read it, but the real and true Governor — which means, among other things, that she loses her position as Lt. Gov. (although she can appoint a new one.) This position, as we’ll get to in the next post, will last only a few weeks, until the replacement election winner is sworn in. (I know that I’ve written otherwise: as discussed in the next post, I was wrong.) So now, she not only out of a job, but she’s out of two jobs! Only at that point, one could argue, could she ask the Supreme Court to decide that the replacement election winner cannot be sworn in by the deadline — or at all.

There is a downside to her doing so, of course: all hell breaking loose. That the replacement election (although not the recall)  could be cancelled after it took place is neither straightforward and easy to understand. We will hear howls of “Stop the Democratic Steal”– a slogan that, while technically wrong, will have some surface plausibility.  Republican voters, probably nationwide, will be inflamed and incited.

This is a big risk — a “major civil unrest” sort of risk. A simpler way to beat the process exists, though it involves something that Newsom perhaps cannot do: defeat the recall. (More tomorrow!)

As a final point: the Legislature can probably fix this in the future, even without a Constitutional Amendment, and eliminate the prospect of a replacement candidate for Governor in the future.

It could pass a bill stating that the word “appropriate” in Article 2 Section 15 is held to designate circumstances where a person being recalled is not automatically replaced by someone in a lesser elected office (regardless of whether they personally are elected or appointed) where the official duties of that lesser office includes ascending to that greater office if it is vacated.

As we can’t expect the citizenry to pass a new constitutional amendment every time there is a need for clarifying an ambiguous term, that clarification role in the first instance lies with the legislature. The Supreme Court would likely defer to the legislative branch’s enacted clarification,

We’d see other recalls of, but not automatic replacements of, future Governors. Sadly, even this change doesn’t suffice. We might see simultaneous joint recalls, of the Governor and Lt. Governor, as a way to thwart the general popular will expressed in a general election. That could be addressed with appropriate legislation such as barring them within a given time period. But that’s still not enough: recalling a Lt. Governor first to set up the transfer of power to the minority party in a later recall election could still happen. Could we pass additional legislation to limit recalls to criminal or corrupt activities rather than policy differences?  Not appetizing. Allow recalls for policy differences alone, but require a supermajority for them? Better, but not good.

So let’s get to the crux of the problem. Newsom’s right about one thing: This recall, unlike most, is absolutely an attempt by Republicans to win in a low-turnout special election what they can’t win in a high-turnout general election. Republicans may think that that’s cool, because after all people do have every chance to vote. I do not think so, because voters who don’t vote don’t have the time or pecuniary interests or social pressure to follow politics closely enough to know what’s going on and why — in other words, they don’t have the external pressure that causes them to vote in other than the biggest elections — and we should not require them to be so constantly vigilant of overturning of their choices in order to protect those choices.

Republicans pursuing their “sneak it in” strategy has led to a big mess — and the solution will likely be messy as well. It may involve requiring that a replacement must receive at least half (or whatever) of the votes that the person being recalled received in their prior election, without which normal rules of succession or appointment established by law would apply.  As I said: a mess.  That’s why I can’t support the recall even though I am deeply pissed at Newsom for his French Laundry hypocrisy and for taking this irresponsible gamble.

Look for more tomorrow on what, beyond an Eleni lawsuit, can now be done.


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)